4th judicial package to eliminate Turkey’s embarrassment before ECtHR

Secretary-General of the Council of Europe Thorbjorn Jagland (C), seen here with Justice Minister Sadullah Ergin (L) during a visit to Hatay last week, says more freedom of speech will only help the fight against terrorism. (Photo: İHA, Adem Karagöz)

The fourth judicial reform package to be presented to the prime minister on Tuesday is expected to eliminate many of the cases in which the European Court of Human Rights (ECtHR) ruled against Turkey in the past.

The fourth judicial reform package, which mainly aims to do away with violations in the area of human rights, fair trial, to expand the boundaries of freedom of expression, and to prevent long detention and trial periods, may prove, analysts agree, an important step for Turkey in strengthening democracy, given that two-thirds of all cases in which the ECtHR has ruled against Turkey so far are related to freedom of expression. The number of cases presently pending against Turkey in the ECtHR in the field of freedom of expression is 450.

“At present, the definition of terrorist acts is so broad in the Counter Terrorism Law that there are nearly 50 crimes connected with terrorism,” Vahap Coşkun, a professor at Dicle University Law School, has told Today's Zaman, affirming the need for penal code reform for Turkey to become a healthy democracy.

It's expected that a modern definition, which will be in accord with the case law of the ECtHR, be made for terrorism in the latest judicial package, which Justice Minister Sadullah Ergin said on a TV channel on Sunday that he would present to Prime Minister Recep Tayyip Erdoğan on Tuesday. Should the package get Erdoğan's consent, it is to go before the Cabinet for consideration and then to Parliament.

In the new definition of terrorism, resorting to violence will probably be the main criteria, and acts that don't contain any violence, such as propagating ideas, are expected to be left out of the definition of terrorism, a step that will pave the way for the release of hundreds of prisoners in court cases related to the Kurdistan Communities Union (KCK), an umbrella organization encompassing the Kurdistan Workers' Party (PKK).

Regarding the importance of freedom of speech for democracies, “It does not make countries weaker. On the contrary, it strengthens democracy and the rule of law. In fact, any successful struggle against terrorism must be based on democratic principles and rule of law,” said Thorbjorn Jagland, secretary general of the Council of Europe, at the recently held High Level Conference on Freedom of Expression and Media Freedom in Turkey. The fact that the Justice Ministry has been working together for more than a year to bring Turkey's penal law in accord with the Council of Europe standards renders Jagland's comment all the more important.

Orhan Kemal Cengiz, a lawyer experienced in human rights cases, agrees with what Jagland said at the conference in Ankara a week ago. Criticizing the broad interpretation of terrorism in the penal code that has been valid so far, “In contrast to popular belief, judging somebody who has just sympathy for a terrorist organization in the same way as those holding a weapon hasn't strengthened Turkey's fight against terrorism, but played into the hands of the terrorist organization,” he told Today's Zaman. Cengiz, who is also a columnist for Today's Zaman, believes what Turkey needs is not to introduce palliative measures, but a thorough overhaul of the legal system and of the constitution in the first place.

Lengthy imprisonment periods and arrest verdicts easily pronounced by courts are another major source of complaints in recent years in Turkey, and the new judicial package is also expected to address this deficiency in the legal system. The problem is best expressed by Adem Sözüer, dean of İstanbul University's School of Law: “Ninety-nine percent of the arrest verdicts [delivered by courts] are unlawful [not in conformity with law].”

The justice minister said on Channel 24 that the fourth package also contains amendments in which the wording of articles, particularly as regards arrest, was done in such a way that the meaning is expressed much more clearly. If the package gets Parliament's approval in the following weeks, those who have been tried under arrest, in cases such as Balyoz (Sledgehammer) and Ergenekon, for a couple of years for charges of plotting a coup d'état, are also expected to get released from prison, and just continue attending trials.

The fourth judiciary package is also expected to include articles aimed at preventing torture and bad treatment, preventing violation of freedom and of the right to security, eliminating obstacles before freedom of speech and liberty of conscience, strengthening rights of the accused, reinforcing the efficiency of the defense, and protection of privacy and family life in a more solid way.

The package will also cover freedom of press and is estimated to have an amendment requiring tangible evidence in court cases against media members. Human rights will seemingly form the backbone of the new package. “Probably its most important aspect concerns the critical changes it will make on the human rights front,” Mümtazer Türköne wrote in his column in Today's Zaman on Feb. 10, also adding amendments regarding fair trial is another focus area of the new package.

Since a previous conference held about 14 months ago in Ankara, Turkey and the Council of Europe started to work together to address the main challenges in law and in practice related to freedom of expression identified by the court in its judgments concerning Turkey. Jagland, who also praised Turkey's efforts to bring the country's legislation in line with the Council of Europe standards, expressed his hope that the reform package, which Justice Minister Sadullah Ergin affirmed at the conference would be brought before Parliament soon, would include the necessary legislative amendments. “What is needed is a complete overhaul of the anti-terrorism law as well as amendments to the Criminal Code,” the secretary general said at the conference.

Some of Turkey's cases before the court refer to the offence of "praising a crime or a criminal" and "propaganda on behalf of a terrorist organization," while other cases relate to punishing defamation against certain national values and state bodies. Referring to a previous judgment of the court, “Freedom of expression may offend; it may even shock,” Jagland noted.